In Re Marriage of Seaman & Menjou

1 Cal. App. 4th 1489, 2 Cal. Rptr. 2d 690

• Court: California Court of Appeal
• Decided: December 18, 1991
• Docket: A048140
• Status: Published

Opinions

Opinion

KLINE, P. J.

Charles H. Seaman II appeals from an order of the family law court in a dissolution action awarding his former wife attorney’s fees in a separate juvenile court action, In re Marjorie S. (Super. Ct. Alameda County, 1991, Nos. 143621/143622; A046829). He contends the trial court lacked jurisdiction to order such fees and the award denied him procedural due process.

Statement of the Case and Facts

On September 23,1987, appellant filed a petition for the dissolution of his marriage to respondent, Patti Sue Menjou. The events which preceded the dissolution were the subject of an earlier appeal from a juvenile court action that resulted in the establishment of dependencies for the couple’s two children, J. and H. In May of 1987, J., then three years old, related a dream which led respondent to believe appellant had molested her. Respondent, who had herself been molested as a child, reported the possible molestation to the Alameda County Children’s Protective Service (CPS) in June. CPS closed its case in July, after which respondent made additional reports in July and September but the case was not reopened, the agency noting concerns that respondent had contaminated the child’s statement due to her obsession with molestation issues.

Pursuant to the parties’ agreement, Dr. Linda Campbell began to assess the family in June of 1987. Campbell was unable to determine whether J. had been molested and was very concerned that respondent’s emotional involvement in the situation was causing the child harm. She last saw the family in October because respondent no longer wanted her to work on the case.

In November 1987, the court appointed Dr. Ricardo Hofer, a clinical psychologist, to assess the family and make recommendations regarding custody and visitation. Hofer concluded there was a low probability J. had actually been sexually molested and a probability respondent was overidentifying or merging with J., and felt respondent’s affect was hurting the children as much as any possible molestation. Pursuant to Hofer’s evaluation, the court ordered joint physical custody of the children, with the children spending two nights at a time with each parent on a rotating basis.

In June 1988, CPS reopened its investigation because J. was continuing to make statements regarding molestation to her day care provider, the emergency response worker and the child welfare worker. A petition was filed on August 6, 1988, and amended on February 24, 1989, alleging that J. and H. came within the provisions of Welfare and Institutions Code section 300 in that appellant had sexually molested and frightened the minors and respondent was causing them emotional damage because of her preoccupation with the molest and was unable to properly care for them. After a jurisdictional hearing which continued over the course of 16 court days, the juvenile court found that J. was suffering or at substantial risk of suffering serious emotional damage as a result of appellant having sexually molested her and threatened her in various ways if she told of the molestation; respondent was preoccupied with the sexual molestation and her repeated discussions of sexual behavior in the minors’ presence was causing them damage; and H. had suffered extreme anxiety from appellant’s wearing frightening masks in his presence. At a dispositional hearing on May 31, the court declared the minors dependent children of the juvenile court, removed them from their parents’ custody and committed them to the Alameda County Social Services Agency for supervision in respondent’s home with regular visitation for appellant.

On July 6, 1989, respondent’s attorney in the dependency proceeding, Christopher F. Emley, filed a memorandum of law in the dissolution action seeking to have appellant pay respondent’s fees and costs in the dependency action. The court found respondent had incurred legal expenses exceeding $50,000 in the dissolution and dependency actions. Finding that both parties were to blame for the harm to the children but that respondent’s flowed from and was outweighed by appellant’s, and considering the parties relative financial positions, the court ordered appellant to contribute $40,000 toward payment of the fees, of which $25,680 was for Emley’s fees.¹ Appellant filed a timely notice of appeal on December 11, 1989.

Meanwhile, appellant had appealed to this court from the judgment in the dependency action. In an unpublished opinion, we concluded that the trial court erred in admitting certain testimony without requiring a foundation pursuant to the principles of People v. Kelly (1976) 17 Cal.3d 24 [549 P.2d 1240] and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 and, finding the case “extraordinarily close,” reversed the judgment.

Discussion

The question we are called upon to address in this appeal is whether a trial court in a dissolution action may order one spouse to pay a portion of the other’s attorney’s fees incurred in the course of defending a dependency proceeding under Welfare and Institutions Code section 300. Appellant contends the trial court erred in concluding it could make such an order either under the authority of Civil Code section 4370² or according to the principle that a wrongdoing spouse may be held solely responsible for community debts incurred as a result of his or her wrongdoing. (In re Marriage of Stitt (1983) 147 Cal.App.3d 579 [195 Cal.Rptr. 172] .)* *³

I.

Section 4370, subdivision (a), provides in pertinent part as follows: “During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys’ fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys’ fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded.” (Italics added.)

By its reference to proceedings “under this part,” section 4370 specifies that it applies to proceedings under the Family Law Act (FLA). (Brink v. Brink (1984) 155 Cal.App.3d 218, 223 [202 Cal.Rptr. 57].) The language italicized above, however, expands the coverage of the statute to “any proceeding related to” a proceeding under the FLA. Since a proceeding under Welfare and Institutions Code section 300 falls under the Juvenile Court Law rather than the FLA, an award of fees under section 4370 is appropriate in the present case only if a dependency proceeding may be considered “related” to the dissolution action under the FLA.⁴

We find little guidance on this question in the case law. The cases offered by the parties are not helpful. Brink v. Brink, supra, 155 Cal.App.3d at p. 223, held fees properly denied to a former spouse who moved to vacate a community property award in an independent action in equity because such an action was not one under the FLA; the court did not discuss section 4-370’s reference to “related” proceedings. Guardianship of Paduano (1989) 215 Cal.App.3d 346, 350-352 [263 Cal.Rptr. 589], found fees appropriate where a guardianship proceeding was consolidated with a dissolution action involving the question of custody of the same child, again without discussion of the language regarding related proceedings. In re Marriage of Green, supra, 213 Cal.App.3d 14, 28, footnote 8, simply stated that whether other proceedings are “related” to a dissolution within the meaning of section 4370 is a question of fact for the trial court without expressing a view on the issue.

The few cases we have discovered that directly address the “related” proceeding language do not interpret it in a manner that provides us guidance but simply make judgment calls as to whether the particular actions involved were “related” to the underlying divorce. Thus, in Gottlieb v. Gottlieb (1957) 155 Cal.App.2d 715 [318 P.2d 763], after a divorce and property settlement agreement, the former wife filed in the divorce action a writ of execution stating her former husband owed certain sums of money. The former husband filed an action for malicious abuse of process alleging that his former wife had known he was not in arrears when she sought the writ. The court held fees inappropriate because, assuming all the allegations of the complaint for malicious abuse of process were true, the action was “based solely on the alleged tortious conduct of the former wife” and therefore was not “related to” and did not “[grow] out of’ the divorce action. (Id., at p. 719.) In Crook v. Crook (1960) 184 Cal.App.2d 745 [7 Cal.Rptr. 892], a former wife was awarded fees on the former husband’s appeal from a judgment disposing of certain property the couple had held as joint tenants. In response to the former husband’s argument that the divorce court had no power to dispose of property held in joint tenancy, the appellate court found the issue properly joined and determined in the divorce action and, accordingly, fees appropriate under the “relating to” language. (Id., at pp. 749-750.)⁵

“Relate” is defined in Webster’s New Collegiate Dictionary (1977) as “to show or establish logical or causal connection between” or “to have relationship or connection: Refer.”⁶ This definition is so general that precise enumeration of the types of proceedings within the purview of section 4370 is impossible; a logical connection between a given proceeding and a FLA action might be found by considering a variety of factors including the type and function of the proceeding, parties to the proceeding, factual and legal matters at issue and motives for the litigation. The generality of the statutory language thus leaves a wide area for exercise of the trial court’s discretion in determining whether an action is “related” to a FLA proceeding.

A motion for attorney’s fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768 [691 P.2d 1020].) In exercising the discretion given by section 4370, however, a court must be guided by the fundamental rule that in construing a statute a court “ ‘ “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ ” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [621 P.2d 856], quoting Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [514 P.2d 1224].) Accordingly, the question whether a non-FLA proceeding is “related” to one under the FLA such that attorney’s fees may be granted must depend on whether an award of fees in the non-FLA proceeding would serve the purpose of section 4370.

The purpose of an award under section 4370 is “to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.” (In re Marriage of Sullivan, supra, 37 Cal.3d 762, 768; In re Marriage of Janssen (1975) 48 Cal.App.3d 425, 428 [121 Cal.Rptr. 701].) “ ‘The basis for awarding attorney’s fees is that each party must have access to legal representation in order to preserve all of his or her rights.’ ” (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219 [215 Cal.Rptr. 789], quoting In re Marriage of Barnert (1978) 85 Cal.App.3d 413, 428 [149 Cal.Rptr. 616].) Thus, a trial court must consider the respective incomes and needs of the parties, including all evidence concerning income, assets and abilities, in exercising its discretion to award attorney’s fees. (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768; In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 893 [219 Cal.Rptr. 337]; In re Marriage of Hatch, supra, 169 Cal.App.3d at p. 1219.)

In keeping with the purpose of section 4370, the most obvious function of the “related” proceeding language is to allow a trial court to fully ensure both parties’ ability to maintain or defend a FLA action. For example, by authorizing fees in cases related to FLA actions as well as in those directly under the FLA, section 4370 enables a trial court to ensure that an appropriate degree of financial parity between the parties is not lost by a party’s litigation of matters which could have been part of the FLA action in an independent suit. (See In re Marriage of Green, supra, 213 Cal.App.3d at p. 28, fn. 8 [noting that numerous actions involving parties to dissolution or their attorneys might be “related” for purposes of section 4370].) Such suits might be “related” in that they involve the same or similar subject matter to the FLA action or, even if unrelated in a factual sense, might fall within the purview of the statute because of their effect on the FLA action. Thus, the statute enables a trial court to prevent a spouse with greater financial resources from harassing or coercing the less advantaged spouse into submission in the FLA case by forcing him or her to defend other lawsuits; such independent suits are “related” within the meaning of section 4370 because they are intended to produce some result in a FLA case.

At the same time, not all actions which are in some way related by subject matter to a FLA action can properly be viewed as within the reach of section 4370. For example, during the pendency of a dissolution proceeding, the husband finds the wife with her lover, becomes involved in a physical altercation and is subsequently sued by the lover for assault. Although the assault case arises out of the dissolution in a general way, the husband’s act is so independent of the dissolution that no purpose of section 4370 would be served by having the wife contribute toward his legal fees (assuming the wife to be the party with greater financial resources).

In the present case, the trial court found that the juvenile court proceedings “were simply an extension of the Family Law action and that, had the matter not been litigated in Juvenile Court, it would have been in this court.” This view ignores fundamental differences between dissolution actions involving the issue of custody of minor children and dependency proceedings under Welfare and Institutions Code section 300. In a dissolution action, parents and other interested parties invoke the court’s jurisdiction to determine rights to custody and visitation in accordance with the best interests of the child. (§§ 4351, 4351.5, 4600; Burchard v. Garay (1986) 42 Cal.3d 531, 535 [724 P.2d 486, 62 A.L.R.4th 237.) The child is generally not ensured representation in the proceeding but must depend upon others to protect his or her interests. (In re Anne P. (1988) 199 Cal.App.3d 183, 194 [244 Cal.Rptr. 490].)

In a dependency proceeding, by contrast, the state acts to protect children who have been or are at risk of being harmed in specific ways enumerated in Welfare and Institutions Code section 300. (See In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1469-1470 [278 Cal.Rptr. 468].) While a dependency proceeding may arise out of facts which also lead to a dissolution action, as in the present case, there is no inherent link between the two: A dependency petition may be filed against parents who have no thought of dissolving their marriage. The parents themselves may have nothing to do with the filing of the petition and, as here, even when one parent instigates the filing of the petition, allegations may be made against both parents. The fact that a dependency petition is filed by a representative of a child protective agency and that the filing is preceded by investigation to determine cause for the action “ ‘insulate the proceedings from self-interest and petty interferences which can pervade parental custody disputes.’ ” (In re Anne P., supra, 199 Cal.App.3d at p. 194, quoting In re William T. (1985) 172 Cal.App.3d 790, 798 [218 Cal.Rptr. 420].)

The child is a party to a dependency proceeding and is entitled to representation by counsel. (Welf. & Inst. Code, § 317; In re Anne P., supra, 199 Cal.App.3d 183, 194; In re William T., supra, 172 Cal.App.3d 790, 798.) The proceeding may ultimately result in parents’ loss of custody and parental rights and the governing statutes accordingly set out careful protections including notice and a due process hearing for parents (Walker v. Superior Court (1988) 47 Cal.3d 112, 134 [763 P.2d 852]), mandatory appointment of counsel for indigent parents whose children may be placed in out of home care (§317, subd. (b)) and discretionary appointment of counsel for any parent unable to afford counsel (Welf. & Inst. Code, § 317, subd. (a)), periodic reviews of the children’s status (Welf. & Inst. Code, § 366) and mandatory services aimed at reunification of the family (Welf. & Inst. Code, § 361.5) which are not required in superior court proceedings. (§ 4609; see In re Clarence I. (1986) 180 Cal.App.3d 279, 281-283 [225 Cal.Rptr. 466].)

Finally, juvenile court proceedings take precedence over other proceedings affecting the custody of children so that once a minor has been adjudged a dependent child of the juvenile court no other superior court may entertain proceedings regarding the child’s custody until the child is no longer a dependent of the juvenile court. (Welf. & Inst. Code, § 304.) Juvenile court dependency orders supersede preexisting domestic relations custody orders and domestic relations courts may not enforce orders that conflict with juvenile court orders. (In re Anne P., supra, 199 Cal.App.3d 183, 193-197; In re William T., supra, 172 Cal.App.3d 790, 797-800; Hogoboom & King, Cal. Practice Guide; Family Law (The Rutter Group 1991) ^ 7:21, pp. 7-43-7-44.)⁷

Section 4370, as explained above, was meant to allow both spouses to properly litigate actions under the FLA, in this case an action for dissolution and child custody. Since the dependency statutes establish a self-contained scheme under which the state acts to prevent particular types of harm to children, not tied to and taking precedence over any other means of determining custody, and differing from family law custody disputes in focus, power of the court and available remedies, to require one spouse to pay for fees incurred by the other in defending against a dependency petition simply would not serve section 4370’s purpose of enabling spouses to properly litigate matters arising from the dissolution of their marriage. This is especially true since the Welfare and Institutions Code contains its own provisions to ensure parents’ representation by giving courts discretion to appoint counsel for parents who are unable to afford counsel. (Welf. & Inst. Code, § 317.) Accordingly, the trial court erred in determining that section 4370 authorized an award of fees for respondent’s attorney in the dependency proceeding and thus abused its discretion in requiring appellant to contribute toward those fees.

We do not mean to suggest that dependency or other proceedings ordinarily unrelated to FLA proceedings may not become “related” by virtue of the motives of the party initiating the proceeding in question. For example, where a parent dissatisfied with the ruling of a domestic relations court manages to prevail upon the relevant authorities to file a dependency petition in order to harass the other parent or to otherwise avoid the valid order of the domestic relations court (see In re Brendan P., supra, 184 Cal.App.3d 910, 919 [juvenile court action prompted by mother immediately after orders for father’s visitation entered in family law court]), the dependency might properly be considered “related” within the meaning of section 4370.⁸ This, however, is not such a case. There is no suggestion in the record that appellant instigated the dependency proceeding; on the contrary, appellant maintains that respondent caused CPS to reopen its investigation by her “constant prodding of [J.] coupled with her incessant threats to sue CPS.” Since appellant’s financial resources far exceed respondent’s, we are not faced with a financially secure spouse attempting to harass or coerce the less well-off one. If respondent instigated the dependency proceeding for an improper motive, a point we need not decide, her conduct could not render the dependency proceeding “related” within the meaning of section 4370. To find a proceeding “related” on the basis of such conduct by a spouse without financial resources would defeat the purpose of the statute by enabling that spouse to harass or coerce the spouse who would be liable for fees.

II.

The trial court’s reliance upon the principles of In re Marriage of Stitt, supra, 147 Cal.App.3d 579 as a basis for the award of attorney’s fees was also improper. In Stitt, a wife who had been convicted of embezzling from her employer argued that attorney fees incurred during her marriage for her defense should be regarded as a community debt and paid from the community property as a whole rather than from her share of the community property. The court recognized that under ordinary community property rules the community could be liable for the debt⁹ but, under equitable principles, found it appropriate in settling marital rights at the time of dissolution of the marriage to assign the full responsibility for the embezzlement to the wife. (Id., at pp. 587-588.) The court stated: “[T]he court had conclusive evidence of recently committed criminal activity which culminated in financial consequences at the time the marriage was coming to an end. No principle of law required the innocent spouse to share the loss created by the other party. Husband had not waived his right to receive his share of the community property free from any loss attributable to wife’s separate conduct. Therefore it was proper for the court to make orders which carried out the law’s intention that only responsible participants in crime or tort bear the loss.” (Ibid.)10

In Stitt, the wife sought to have her husband share in the costs of litigation which arose from her independent actions; the essence of the holding is that an innocent spouse may be relieved of his or her share of a community obligation arising solely out of the act of the other spouse. In the present case, respondent is not seeking to have her attorney’s fees treated as a community obligation but to avoid all cost to herself and have appellant bear the full burden of the fees directly. This is simply not a situation to which Stitt applies. Additionally, unlike the husband in Stitt, respondent was not a wholly innocent spouse: The dependency petition was sustained in part on the basis of allegations against her.¹¹

The judgment is reversed insofar as it awards respondent attorney’s fees for the dependency proceeding.

Smith, J., concurred.

1 The court’s award of $14,320 for the fees of respondent’s attorney in the dissolution action, Eileen Preville, are not contested in this appeal.

2 All further statutory references will be to the Civil Code unless otherwise specified.

3 Respondent contends appellant’s failure to request a statement of decision is fatal to his appeal. Unlike the cases respondent relies upon (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-648 [253 Cal.Rptr. 770]; In re Marriage of Jones (1990) 222 Cal.App.3d 505, 515 [271 Cal.Rptr. 761]; In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274 [255 Cal.Rptr. 488]; In re Marriage of Green (1989) 213 Cal.App.3d 14, 20 [261 Cal.Rptr. 294]), in which the record contained no explanation of the final judgment, here the judgment sets forth the reasons for the award. In these circumstances, absence of a statement of decision does not hamper our review. (See In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580 [271 Cal.Rptr. 389]; In re Marriage of Powers (1990) 218 Cal.App.3d 626, 634 [267 Cal.Rptr. 350].)

4 In his concurring opinion, Justice Peterson concludes that fees may be awarded under section 4370 only for services incurred in proceedings under the Family Law Act because he believes this was the purpose of the State Bar, which sponsored the 1951 legislation that became section 4370. There is, however, no indication in the legislative history whatsoever that the Legislature shared the State Bar’s restrictive view. Sales v. Stewart (1933) 134 Cal.App. 661, 664 [26 P.2d 44], which Justice Peterson relies upon for the proposition that the views of the State Bar may be considered as part of the legislative history, has been strongly criticized and rarely followed. (Note, Nonlegislative Intent as an Aid to Statutory Interpretation (1949) 49 Colum.L.Rev. 676, 684; Note, California Legislative Materials (1952) 4 Stan.L.Rev. 367, 372.) Our opinion in American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480 is not consistent with Sales, as Justice Peterson suggests. In American Tobacco, our assessment of legislative purpose relied chiefly on legislative staff analyses. Pointing out that the statement of a special interest group “is ordinarily an unreliable indication of the purpose of legislation affecting the interests of that group” (id., at p. 488), we relied in part on such a statement only because it “concede[d] a purpose mimical to the goals of the interest group” (ibid.) and was therefore uncommonly reliable. There is in the present case no analogous statement against interest. Moreover, even if the Legislature could be assumed to have contemplated that the statute would ordinarily apply to costs and fees incurred in domestic relations proceedings, this expectation would not at all be frustrated by the broader application we feel warranted by the very language of the statute. Finally, the parade of horribles Justice Peterson predicts will result from our interpretation of the language of the statute is, in our view, farfetched.

5 Gottlieb v. Gottlieb, supra, 155 Cal.App.2d 715 and Crook v. Crook, supra, 184 Cal.App.2d 745, construed former section 137.3, predecessor to section 4370, which authorized fees in actions for “divorce” and proceedings “relating thereto.”

6 The definitional terms “connection,” “relationship,” and “refer” are each defined by reference to each other: “Relationship” is defined as “the state or character of being related or interrelated: Connection”; “refer” is defined as “to have relation or connection: Relate”; “connection” is defined as “the act of connecting: the state of being connected: as ... a causal or logical relation or sequence.”

7 The court in In re Brendan P. (1986) 184 Cal.App.3d 910 [230 Cal.Rptr. 720], expressed the view that it would be improper for a juvenile court to assume jurisdiction over an issue which has previously been litigated in a family court action. It has been questioned whether this exception to the general rule is consistent with Welfare and Institutions Code section 304, which became operative after jurisdiction was taken in those cases (Hogoboom & King, supra, § 7:21-7:21.3, pp. 7-43-7-44), although the exception may survive on a theory that juvenile court proceedings are paramount only if jurisdiction is properly assumed and a juvenile court may not properly exercise jurisdiction if the precise issue has already been litigated in a FLA action. (Id., § 7:21.3.) In re Benjamin D., supra, 227 Cal.App.3d at p. 1471, disagreed with Brendan P, holding that to make jurisdiction of the juvenile court dependent on the nature of family law litigation would create the potential of having private litigation frustrate the purposes of section 300. We need not determine this issue as the parties in the present case have not questioned the propriety of the juvenile court’s jurisdiction.

8 Although they have no direct bearing on the question of attorney’s fees at issue here, the cases involving conflicts of jurisdiction between juvenile and domestic relations courts illustrate how the facts of a given case can make the two types of proceedings seem more or less distinct. In re Brendan P., supra, 184 Cal.App.3d 910, which stated in dicta that the juvenile court cannot relitigate the precise issue previously adjudicated in a family court action, noted that the dependency petition had been filed, upon the mother’s prompting, the day after the family court’s ruling and that the juvenile court action as a factual matter did not protect the children from the “pervasive ‘self-interest and petty interferences [characteristic of] parental custody disputes.’ ” (Id., at p. 919.)

By contrast, in In re William T., supra, 172 Cal.App.3d 790, 797-800, the father contacted the child protective services agency in his county of residence while awaiting a hearing set two months later in a custody dispute pending in a different county, after his child reported certain events had occurred during visitation with her mother. CPS investigated and filed a dependency petition 11 days later. After the juvenile court proceeding, the family law court entered orders conflicting with those of the juvenile court. The majority opinion held the juvenile court’s jurisdiction paramount over that of other superior courts even if acquired later in time, focussing on the unique characteristics of a juvenile court action in which the state, as parens patriae, acts to protect a child.

Similarly, in In re Benjamin D., supra, 227 Cal.App.3d 1464, a dependency petition was filed after investigation by CPS of a mother’s report of abuse by the father. A family law court had previously been presented with evidence of abuse on a motion to modify visitation but had refused to consider evidence of abuse predating the judgment of dissolution. The appellate court held the family law proceeding could not prevent consideration of the evidence by the juvenile court, stressing that family law and juvenile proceedings have different purposes and parties and that the juvenile court is required by statute to take jurisdiction whenever a minor comes within the provisions of section 300. (Id., at pp. 1469-1472.)

9 Under former section 5116 (and present § 5120.110), the community is liable for contracts made by either party during marriage. (Stitt, supra, 147 Cal.App.3d at p. 587.) Under section 5122, which states that a married person is generally not liable for damages caused by a tortfeasor spouse, because the husband did not participate in the embezzlement and there was no showing her actions benefitted the community, the attorney’s claim had to be satisfied first from the wife’s separate property and then from the community property. When a spouse’s liability is based upon an act or omission which occurred while the spouse was performing an activity for the benefit of the community, the liability must be satisfied first from community property and second from the spouse’s separate property. (§ 5122.)

10 The court in In re Marriage of Hirsch (1989) 211 Cal.App.3d 104 [259 Cal.Rptr. 39] criticized Stitt to the extent it held negligent conduct benefitting the community could justify characterizing a debt as a separate obligation although it agreed with Stitt’s conclusion on the facts of that case.

11 In view of our conclusions above, we need not discuss appellant’s additional contention that the trial court’s order denied him procedural due process.